European Protection Order ***I European Parliament legislative resolution of 14 December 2010 on the draft directive of the European Parliament and of the Council on the European Protection Order (00002/2010 – C7-0006/2010 – 2010/0802(COD))#P7_TC1-COD(2010)0802 Position of the European Parliament adopted at first reading on 14 December 2010 with a view to the adoption of Directive 2011/…/EU of the European Parliament and of the Council on the European Protection Order#ANNEX I#ANNEX II
Date: 2010-12-14
Institutions: Committee on Civil Liberties, Justice and Home Affairs, Committee on Women’s Rights and Gender Equality, European Parliament
Subjects: crime against individuals, help for victims, judicial cooperation, right to justice, ruling








CE2012169EN.01017502.xml










15.6.2012   


EN


Official Journal of the European Union


CE 169/175





Tuesday 14 December 2010European Protection Order ***I
P7_TA(2010)0470
European Parliament legislative resolution of 14 December 2010 on the draft directive of the European Parliament and of the Council on the European Protection Order (00002/2010 – C7-0006/2010 – 2010/0802(COD))
2012/C 169 E/35
(Ordinary legislative procedure: first reading)

The European Parliament,






—


having regard to the initiative emanating from a group of Member States (00002/2010),










—


having regard to Article 76(b) and point (d) of the second subparagraph of Article 82(1) and Article 289(4) of the Treaty on the Functioning of the European Union, pursuant to which the Council submitted the draft act to Parliament (C7-0006/2010),










—


having regard to Article 294(3) and (15) of the Treaty on the Functioning of the European Union,










—


having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,










—


having regard to the reasoned opinion submitted, in the framework of the Protocol (No 2) on the application of the principles of subsidiarity and proportionality, by a national parliament asserting that the draft legislative act does not comply with the principle of subsidiarity,










—


having regard to the contributions submitted by national parliaments on the draft legislative act,










—


having regard to Rules 37, 44 and 55 of its Rules of Procedure,










—


having regard to the joint deliberations of the Committee on Civil Liberties, Justice and Home Affairs and of the Committee on Women’s Rights and Gender Equality pursuant to Rule 51 of the Rules of Procedure










—


having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and of the Committee on Women's Rights and Gender Equality (A7-0354/2010),










1.


Adopts its position at first reading hereinafter set out;










2.


Instructs its President to forward its position to the Council, the Commission and the national parliaments.






Tuesday 14 December 2010P7_TC1-COD(2010)0802
Position of the European Parliament adopted at first reading on 14 December 2010 with a view to the adoption of Directive 2011/…/EU of the European Parliament and of the Council on the European Protection Order
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(1) 
(a) and
 (d) thereof,
Having regard to the initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Hungary, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Finland and the Kingdom of Sweden,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure (1),
Whereas:






(1)


The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice.










(2)


Article 82(1) of the Treaty on the Functioning of the European Union (TFEU) provides that judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions.










(3)


According to the Stockholm programme, adopted by the European Council at its meeting on 10 and 11 December 2009, mutual recognition could extend to all types of judgments and decisions of a judicial nature, which may, depending on the legal system, be either criminal or administrative. 
It also calls on the Commission and the Member States to examine how to improve legislation on and practical support measures for the protection of victims.
 The programme also points out that victims of crime can be offered special protection measures which should be effective within the Union. 
This Directive forms part of a coherent and comprehensive set of measures on victims’ rights.












(4)


The resolution of the European Parliament of 
26 November 2009 on the elimination of violence against women calls on the Member States to improve their national laws and policies to combat all forms of violence against women and to act in order to tackle the causes of violence against women, not least by employing preventive measures and calls on the Union to guarantee the right to assistance and support for all victims of violence. The resolution of the European Parliament of 10 February 2010 on equality between women and men in the European Union – 2009 endorses the proposal to introduce the European protection order for victims.












(5)


In a common area of justice without internal borders, it is necessary to ensure that the protection provided to a 
natural
 person in one Member State is maintained and continued in any other Member State to which the person moves or has moved. It should also be ensured that the legitimate exercise by citizens of the Union of their right to move and reside freely within the territory of Member States, in accordance with Article 3(2) of the Treaty on European Union (TEU) and Article 21 of the TFEU, does not result in a loss of their 
protection
.










(6)


In order to attain these objectives, this Directive should set out rules whereby the protection stemming from 
certain
 protection 
measures
 adopted according to the law of one Member State (‘the issuing State’) can be extended to another Member State 
in
 which the protected person 
decides to reside or stay
 (‘the executing State’).▐












(7)






This Directive takes account of the different legal traditions of the Member States as well as the fact that effective protection can be provided by means of protection orders taken by an authority other than a criminal court. This Directive does not establish obligations to modify national systems for adopting protection measures.














(8)






This Directive applies to protection measures which aim at protecting a person against a criminal act of another person which may, in any way, endanger his or her life, physical, psychological and sexual integrity, such as by preventing any form of harassment, as well as his or her dignity or personal liberty, such as by preventing abductions, stalking and other forms of indirect coercion, and aiming at avoiding new acts of crime or at reducing the consequences of previous acts of crime. These personal rights of the protected person amount to fundamental values recognised and upheld in all Member States. It is important to underline that this Directive applies to protection measures which aim at protecting all victims and not only the victims of gender violence, taking into account the specificities of each type of crime concerned.














(9)






This Directive applies to protection measures, independently of the nature – criminal, civil or administrative – of the judicial or equivalent authority that adopts the decision concerned, be it in the context of criminal proceedings or in the context of any other proceedings with regard to an act which has been or could have been the object of proceedings by a court having jurisdiction in particular in criminal matters.














(10)






This Directive is intended to apply to protection measures issued in favour of victims, or possible victims, of crimes; it should not apply to measures issued with a view to witness protection.














(11)






If a protection measure, as defined in this Directive, is issued for the protection of a relative of the main protected person, a European protection order may also be requested by and issued with regard to this relative, subject to the conditions laid down in this Directive.














(12)






Any request for the issuing of a European protection order should be treated with adequate speed taking into consideration the specific circumstances of the case, including the urgency of the matter, the date foreseen for the arrival of the protected person on the territory of the executing State and, where possible, the degree of risk for the protected person.














(13)






Where information is to be provided under this Directive to the person causing danger or to the protected person, this information should also be provided to the guardian or to the representative of the person concerned where relevant. Due attention should also be paid to the need for the protected person, the person causing danger or their representative in the proceedings, to receive information, as provided for by this Directive, in a language they understand.














(14)






In the procedures for the issuing and recognition of a European Protection order, competent authorities should give appropriate consideration to the needs of victims, including particularly vulnerable persons, such as. minors or persons with disabilities.












(15)




For the application of This Directive, a protection measure may have been imposed following a judgment, as defined by Article 2 of Council
 Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (2), 
or following a decision on supervision measures as defined in Article 4 of
 Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (3).












(16)






In conformity with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with Article 47, paragraph 2, of the Charter on Fundamental Rights of the European Union, the person causing danger should be provided, either in the procedure leading to the adoption of a protection measure or before issuing a European protection order, with the possibility to be heard and to challenge the protection measure.












(17)


In order to prevent a crime or new crime being committed against the victim in the executing State, that State should be given a legal basis for recognising the decision previously adopted in the issuing State in favour of the victim, while also avoiding the need for the victim to start new proceedings or to produce evidence in the executing State again as if the issuing State had not adopted the decision. 
The recognition of the European protection order by the executing State implies inter alia that the competent authority of that State, subject to the limitations set out in this Directive, accepts the existence and validity of the protection measure adopted in the issuing State, acknowledges the factual situation described in the European protection order, and agrees that protection should be provided and should be continued to be provided in accordance with its national law.












(18)




This Directive contains a closed number of obligations or prohibitions which, when imposed in the issuing State and contained in the European protection order, should be recognised and enforced in the executing State, subject to the limitations set out in this Directive. Other types of protection measures may exist at national level, such as, if provided by national law, the obligation on the person causing danger to remain in a specified place. Such measures may be imposed in the issuing State in the framework of the procedure leading to the adoption of one of the protection measures which, according to this Directive, may be the basis for a European Protection Order.














(19)






Since in the Member States different kind of authorities (civil, criminal or administrative) are competent to issue and enforce protection measures, it seems appropriate to provide a high degree of flexibility in the cooperation mechanism between the Member States under this Directive. Therefore, the competent authority in the executing State does not in all cases have to take the same protection measure as adopted in the issuing State, but it has a degree of discretion to adopt any measure which it would deem adequate and appropriate under its national law in a similar case in order to provide continued protection to the protected person in the light of the protection measure adopted in the issuing State, and as described in the European protection order.














(20)






The obligations or prohibitions to which this Directive applies include, among others, measures aimed at limiting personal or remote contacts between the protected person and the person causing danger, for example by imposing certain conditions on such contacts or imposing restrictions on the contents of communications.














(21)






The competent authority of the executing State should inform the person causing danger, the competent authority of the issuing State and the protected person of any measure taken on the basis of the European protection order. In the notification of the person causing danger due regard should be taken of the interest of the protected person in not having his or her address or other contact details disclosed. Such details should be excluded from the notification, provided that the address or other contact details are not comprised in the obligation or prohibition imposed as an enforcement measure on the person causing danger.














(22)






When the competent authority in the issuing State has withdrawn the European protection order, the competent authority in the executing State should end the measures which it has adopted in order to enforce the European protection order, it being understood that the competent authority in the executing State may - autonomously, according to its national law - adopt any protection measure under its national law in order to protect the person concerned.












(23)


Given that this Directive deals with situations in which the protected person moves to another Member State, executing its provisions does not imply any transfer to the executing State of powers relating to principal, suspended, alternative, conditional or secondary penalties, or relating to security measures imposed on the person causing danger, if the latter continues to reside in the State that issued the protection measure.










(24)




Where appropriate, it should be possible to use electronic means with a view to putting into practice the measures adopted in application of this Directive, in accordance with national laws and procedures.














(25)






In the framework of cooperation among the authorities involved in ensuring the safeguard of the protected person, the competent authority of the executing State should communicate to the competent authority of the issuing State any breach of the measures adopted in the executing State with a view to executing the European protection order. This communication should enable the competent authority of the issuing State to promptly decide on any appropriate reaction with respect to the protection measure imposed in its State on the person causing danger. Such reaction may comprise, where appropriate, the imposition of a custodial measure in substitution of the non-custodial measure originally adopted, for example as an alternative to preventive detention or as a consequence of conditional suspension of a penalty. It is understood that such decision, since it does not consist in the imposition ex novo of a criminal sanction in relation to a new criminal offence, does not interfere with the possibility that the executing State may, where applicable, impose criminal or non-criminal sanctions in the event of breach of the measures adopted in order to execute the European protection order.














(26)






Considering the different legal traditions of the Member States, where no protection measure would be available in the executing State in a case similar to the factual situation described in the European protection order, the competent authority of the executing State should report any breach of the protection measure described in the European protection order of which it is aware to the competent authority of the issuing State.














(27)






In order to achieve the smooth application of this Directive in each particular case, the competent authorities of the issuing and the executing States should exercise their competencies in conformity with the provisions of this Directive, taking into account the principle of ne bis in idem.














(28)






The protected person should not be required to sustain costs for the recognition of the European protection order which are disproportionate with respect to a similar national case. When implementing this Directive, Member States should ensure that, after and as a direct consequence of the recognition of the European protection order, the protected person should not be required to initiate further national proceedings to obtain from the executing authority the decision adopting any measure that would be available under its national law in a similar case in order to ensure the safeguard of the protected person.














(29)






Bearing in mind the principle of mutual recognition on which this Directive is based, Member States should promote to the widest extent possible direct contact between the competent authorities in the application of this instrument.














(30)






Without prejudice to judicial independence and differences in the organisation of the judiciary across the Union, Member States should consider requesting those responsible for the training of judges, prosecutors, police and judicial staff involved in the procedures aiming at issuing or recognising a European protection order to provide appropriate training with respect to the objectives of this Directive.














(31)






In order to facilitate the evaluation of the application of this Directive, Member States should communicate to the Commission relevant data related to the application of national procedures on the European protection order, at least on the number of European protection orders requested, issued and/or recognised. In this respect, other types of data, such as for example the types of crimes concerned, would also be useful.












(32)


Since the objective of this Directive, namely to protect persons who are in danger, cannot be sufficiently achieved by the Member States alone, given the cross-border nature of the situations involved, and can therefore by reason of the scale and effects be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality, as set out in that Article this Directive does not go beyond what is necessary to achieve that objective.












(33)






This Directive should contribute to the protection of persons who are in danger, thereby complementing but not affecting the instruments already in place in this field, such as Council Framework Decision 2008/947/JHA and Council Framework Decision 2009/829/JHA.














(34)






When a decision relating to a protection measure falls within the scope of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (4), Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility (5), or the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (6), the recognition and enforcement of that decision should be carried out in accordance with the provisions of that legal instrument.














(35)






Member States and the Commission should include information about the European protection order, where it is appropriate, in existing education and awareness-raising campaigns on the protection of victims of crime.














(36)






Personal data processed when implementing this Directive should be protected in accordance with Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (7) and in accordance with the principles laid down in the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which all Member States have ratified.














(37)






This Directive should respect the fundamental rights, as guaranteed by the Charter on Fundamental Rights of the European Union and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, in conformity with Article 6 of the TEU.














(38)






When implementing this Directive, Member States are encouraged to take into account the rights and principles enshrined in the Convention on the elimination of all forms of discrimination against women,






HAVE ADOPTED THIS DIRECTIVE:

Article 1


Objective



This Directive sets out rules allowing a judicial or equivalent authority in a Member State, in which a protection measure has been issued with a view to protecting a person against a criminal act of another person which may endanger his or her life, physical or psychological integrity and dignity, personal liberty or sexual integrity, to issue a European protection order enabling a competent authority in another Member State to continue the protection of the person concerned in the territory of this Member State, following the commission in the issuing State of an act which has been or could have been the object of proceedings by a court having jurisdiction in criminal matters in particular.



Article 2


Definitions

For the purposes of this Directive the following definitions shall apply:






1)


‘European protection order’ means a ▐ decision
, taken
 by a 
judicial or equivalent authority of a Member State in relation to a protection measure, on the basis of which a judicial or equivalent authority of
 another Member State 
takes any
 appropriate ▐ measure 
or measures
 under its own national law with a view to 
continuing
 to safeguard of the 
protected
 person.










2)


‘Protection measure’ means a decision adopted 
in the issuing State in accordance with its national law and procedures by which one or more of the obligations or prohibitions, referred to in Article 5, are imposed on a person causing danger, to the benefit of a protected person with a view to protecting the latter against a criminal act which may endanger his or her life, physical or psychological integrity, dignity, personal liberty or sexual integrity.












3)


‘Protected person’ means the 
natural person who is
 the object of the protection stemming from a protection measure adopted by the issuing State.










4)


‘Person causing danger’ means the 
natural
 person on whom one or more of the obligations or prohibitions, referred to in 
Article 5
, have been imposed.










5)


‘Issuing State’ means the Member State in which a protection measure has been ▐ adopted, constituting the basis for issuing a European protection order.










6)


‘Executing State’ means the Member State to which a European protection order has been forwarded with a view to its recognition.










7)


‘State of supervision’ means the Member State to which a judgment, as defined in Article 2 of Council Framework Decision 2008/947/JHA, or a decision on supervision measures, as defined in Article 4 of Framework Decision 2009/829/JHA, has been transferred.




▐

Article 3


Designation of competent authorities

1.   Each Member State shall inform the 
Commission
 which judicial 
or equivalent
 authority or authorities are competent under its national law to issue a European protection order and to recognise such an order, in accordance with this Directive, when that Member State is the issuing State or the executing State respectively.
▐
2.   The 
Commission
 shall make the information received available to all Member States. 
Member States shall inform
 the Commission 
of any change related to the information referred to in paragraph 1
.

Article 4


Recourse to a central authority



1.
   
Each Member State may designate a central authority or, where its legal system so provides, more than one central authority, to assist its competent authorities.




2.
   
A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority or authorities responsible for the administrative transmission and reception of any European protection order, as well as for all other official correspondence relating thereto. As a consequence, all communications, consultations, exchanges of information, enquiries and notifications between competent authorities may be dealt with, where appropriate, with the assistance of the designated central authority or authorities of the Member State concerned.




3.
   
Member States wishing to make use of the possibilities referred to in this Article shall communicate to the Commission information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State.



Article 5


Condition of existence of a protection measure under national law



A European protection order may only be issued when a protection measure has been previously adopted in the issuing State, imposing on the person causing danger one or more of the following obligations or prohibitions:










(a)






a prohibition from entering certain localities, places or defined areas where the protected person resides or visits;














(b)






a prohibition or regulation of contact, in any form, with the protected person, including by phone, electronic or ordinary mail, fax or any other means; or














(c)






a prohibition or regulation on approaching the protected person within a prescribed distance.







Article 6


Issue of a European protection order

1.   
A European protection order may be issued when the protected person decides to reside or already resides in another Member State, or when the protected person decides to stay or already stays in another Member State. When deciding upon the issuing of a European protection order, the competent authority in the issuing State shall take into account, inter alia, the length of the period or periods time for which the protected person envisages staying in the executing State and the seriousness of the need for protection.




2.
   
A competent authority of the issuing State may issue a European protection order only at the request of the protected person and after verifying that the protection measure meets the requirements set out in Article 5.


3.   The protected person ▐ may submit a request for 
issuing
 a European protection order either to the competent authority of the issuing State or to the competent authority of the executing State. If such a request is submitted in the executing State, its competent authority shall transfer this request as soon as possible to the competent authority of the issuing State ▐.


4.
   
Before issuing a European protection order the person causing danger shall be given the right to be heard and the right to challenge the protection measure, if he or she has not been granted these rights in the procedure leading to the adoption of the protection measure.


5.   
When a competent
 authority ▐ adopts a protection measure containing one or more of the obligations or prohibitions, referred to in 
Article 5, it
 shall inform the protected person 
in any appropriate way in accordance with the procedures under its national law
 about the possibility of requesting a European protection order in 
case
 he or she 
decides
 to 
leave for
 another Member State
, as well as of the basic conditions for such request
. The authority shall advise the protected person to submit an application before leaving the territory of the issuing State.


6.
   
If the protected person has a guardian or representative, that person may introduce the request referred to in paragraph 2 and 3, on behalf of the protected person.




7.
   
When the request to issue a European protection order is rejected, the competent authority of the issuing State shall inform the protected person about legal remedies available, where applicable, under its national law against its decision.



Article 7


Form and content of the European protection order

The European protection order shall be 
issued
 in accordance with the form set out in Annex I to this Directive. It shall in particular contain the following information:






(a)


the identity and nationality of the protected person, as well as the identity and nationality of the person’s 
guardian or
 representative if the protected person is a minor or is legally incapacitated;










(b)




the date from which the protected person intends to reside or stay in the executing State, and the period or periods of stay, if known
;










(c)


the name, address, telephone and fax numbers, and e-mail address of the competent authority of the issuing State;










(d)


the identification 
(for example through a number and date)
 of the 
legal act containing the
 protection measure on the basis of which the European protection order is adopted;










(e)


a summary of the facts and circumstances which have led to the imposition of the protection measure in the issuing State;










(f)


the obligations or prohibitions imposed in the protection measure underlying the European protection order on the person causing danger, their duration and the ▐ indication 
of the penalty or sanction, if any, in case
 of the 
breach of the respective obligation or prohibition
;












(g)






the use of a technical device, if any, that has been provided to the protected person or to the person causing danger as a means of enforcing the protection measure;












(h)


the identity and nationality of the person causing ▐ danger
, as well as his or her contact details
;












(i)






where such information is known by the competent authority of the issuing State without requiring further inquiry, the fact as to whether the protected person and/or the person causing danger has been granted free legal aid in the issuing State;












(j)


where appropriate, other circumstances that could have an influence on the assessment of the danger that confronts the protected person;










(k)


the express indication, where applicable, that a judgement, as defined by Article 2 of Council Framework Decision 2008/947/JHA, or a decision on supervision measures, as defined by Article 4 of Council Framework Decision 2009/829/JHA, has already been transferred to 
the
 State 
of supervision
 and the identification of the competent authority 
of that State
 for the enforcement of such a judgment or decision.





Article 8


Transmission procedure

1.   Where the competent authority of the issuing State transmits the European protection order to the competent authority of the executing State, it shall do so by any means which leaves a written record so as to allow the competent authority of the executing Member State to establish its authenticity. 
All official communication shall also be made directly between those competent authorities.


2.   If the competent authority of either the executing or the issuing State is not known to the competent authority of the other State, the latter authority shall make all the relevant enquiries, including via the contact points of the European Judicial Network 
referred to in Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network (8)

, the National Member of Eurojust or the National System for the coordination of Eurojust of its State, in order to obtain the necessary information.
3.   When an authority of the executing State which receives a European protection order has no competence to recognise it, that authority shall, ex officio, forward the European protection order to the competent authority 
and shall without delay inform the competent authority of the issuing State accordingly by any means which leaves a written record
.

Article 9


Measures in the executing State

1.   
Upon receipt of a European protection order transmitted in accordance with Article 8, the competent authority of the executing State shall without undue delay recognise that order and take a decision adopting any measure that would be available under its national law in a similar case in order to ensure the safeguard of the protected person, unless it decides to invoke one of the grounds for non-recognition referred to in Article 10
.


2.
   
The measure adopted by the competent authority of the executing State in accordance with paragraph 1, as well as any other measure taken on the basis of a subsequent decision referred to in Article 11, shall correspond, to the highest degree possible, to the protection measure ordered in the issuing State.


3.   The competent authority of the executing State shall inform the 
person causing danger,
 the competent authority of the issuing State and the protected person 
of any
 measures 
taken in application of paragraph 1, as well as of the possible legal consequence of a breach of such measure, as provided for under national law and in accordance with Article 11(2). The address or other contact details of the protected person shall not be disclosed to the person causing danger unless necessary in view of the enforcement of the measure taken in application of paragraph 1.




4.
   
If the competent authority in the executing State considers that the information transmitted with the European protection order according to Article 7 is incomplete, it shall without delay inform the competent authority of the issuing State by any means which leaves a written record, assigning a reasonable term for it to provide the missing information.



Article 10


Grounds for non-recognition of a European protection order

▐
1.   The competent authority of the executing State may refuse to recognise a European protection order in the following circumstances:






(a)


the European protection order is not complete or has not been completed within the time-limit set by the competent authority of the executing State;










(b)


the requirements set out in 
Article 5
 have not been met;










(c)


the protection 
measure relates to an act that does not constitute a criminal offence under the law of the executing State
;












(d)






the protection
 derives from the execution of a penalty or measure that is covered by an amnesty according to the law of the executing State and relates to an act 
or behaviour
 which falls within its competence according to that law;










(e)


there is immunity conferred under the law of the executing State on the person causing danger, which makes it impossible to adopt ▐ measures 
on the basis of a European protection order
;












(f)






criminal prosecution against the person causing danger for the act or behaviour in relation to which the protection measure has been adopted is statute-barred under the law of the executing State, when the act or behaviour falls within its competence under its national law;














(g)






recognition of the European protection order would contravene the ne bis in idem principle;














(h)






under the law of the executing State, the person causing danger cannot, because of his or her age, be held criminally responsible for the act or behaviour in relation to which the protection measure has been adopted;














(i)






the protection measure relates to a criminal offence which under the law of the executing State is regarded as having been committed wholly or for a major or essential part within its territory.






2.   
Where the competent authority of the executing State refuses to recognise a European protection order in application of one of the above grounds, it shall:










(a)






inform the issuing State and the protected person without undue delay of this refusal and of the grounds relating thereto;














(b)






where appropriate, inform the protected person about the possibility of requesting the adoption of a protection measure according to its national law;














(c)






where applicable, inform the protected person about legal remedies available under its national law against its decision.







Article 11


Governing law and competence in the executing State



1.
   
The executing State has competence to adopt and to enforce measures in that State following the recognition of a European protection order. The law of the executing State applies to the adoption and enforcement of the decision foreseen in Article 9(1), including rules on legal remedies against decisions adopted in the executing State relating to the European protection order.




2.
   
In the event of a breach of one or more of the measures taken by the executing State following the recognition of a European protection order, the competent authority of the executing State has, in application of paragraph 1, the competence to:










a)






impose criminal sanctions and take any other measure as a consequence of the breach of such measure, if the breach amounts to a criminal offence under the law of the executing State;














b)






take any non-criminal decisions related to the breach;














c)






take any urgent and provisional measure in order to put an end to the breach, pending, where appropriate, a subsequent decision by the issuing State.








3.
   
If there is no available measure at national level in a similar case to be taken in the executing State, the competent authority of the executing State shall report to the competent authority of the issuing State any breach of the protection measure described in the European protection order of which it is aware.



Article 12


Notification in case of breach



The competent authority of the executing State shall notify the competent authority of the issuing State or of the State of supervision of any breach of the measure or measures taken on the basis of the European protection order. Notice shall be given using the standard form set out in Annex II.



Article 13


Competence
in the issuing State

1.   The competent authority of the issuing State shall have 
exclusive competence to take decisions relating to
:






(a)


the renewal, review
, modification, revocation
 and withdrawal of the protection measure 
and, consequently, of the European protection order
;










(b)




the imposition of a custodial measure as a consequence of revoking the protection measure, provided that the protection measure has been applied on the basis of a judgement, as defined by Article 2 of Council Framework Decision 2008/947/JHA, or on the basis of a decision on supervision measures, as defined in Article 4 of Council Framework Decision 2009/829/JHA.






▐
2.   The law of the issuing State shall apply to decisions taken pursuant to paragraph 1.
3.   Where a judgment, as defined in Article 2 of Council Framework Decision 2008/947/JHA, or a decision on supervision measures, as defined in Article 4 of Council Framework Decision 2009/829/JHA, has already been transferred
, or is transferred after the issuing of the European protection order,
 to another Member State, subsequent decisions shall be taken in accordance with the relevant provisions of those Framework Decisions.


4.
   
The competent authority of the issuing Member State shall inform the competent authority of the executing Member State without delay of any decision taken in accordance with paragraph 1.




5.
   
If the competent authority in the issuing State has revoked or withdrawn the European protection order in accordance with point a of paragraph 1, the competent authority in the executing State shall end the measures adopted in accordance with Article 9(1) as soon as it has been duly notified by the competent authority of the issuing State.




6.
   
If the competent authority in the issuing State has modified the European protection order in accordance with point a of paragraph 1, the competent authority in the executing State shall, as appropriate










(a)






modify the measures taken on the basis of the European protection order, acting in accordance with Article 9; or














(b)






refuse to enforce the modified obligation or prohibition when it does not fall within the types of obligations or prohibitions referred to in Article 5 or if the information transmitted with the European protection order according to Article 7 is incomplete and has not been completed within the time-limit set by the competent authority of the executing State according to Article 9(4).







Article 14


Grounds for
discontinuation of measures taken on the basis
of a European protection order

1.   The competent authority of the executing State may 
discontinue the measures taken in execution of a European protection order:










(a)






where there is clear indication that the protected person does not reside or stay in the territory of the executing State, or has definitively left that territory;














(b)






when, according to its national law, the maximum term of duration of the measures adopted in execution of the European protection order has expired;














(c)






in the case referred to in Article 13(6)(b);














(d)






where a judgment, as defined in Article 2 of Council Framework Decision 2008/947/JHA, or a decision on supervision measures, as defined in Article 4 of Council Framework Decision 2009/829/JHA, is transferred to the executing State after the recognition of the European protection order.








2.
   
The competent authority of the executing State shall immediately inform the competent authority of the issuing State and where possible, the protected person of such a decision.




3.
   
Before discontinuing measures in accordance with point b of paragraph 1, the competent authority of the executing State may request that the competent authority of the issuing State provide information as to whether the protection provided for by the European protection order is still needed in the circumstances of the particular case at hand. The competent authority of the issuing State shall, without delay, reply to such a request.



Article 15


Priority in recognition of a European protection order



The European protection order shall be recognised with the same priority which would be applicable in a similar national case, taking into consideration the specific circumstances of the case, including the urgency of the matter, the date foreseen for the arrival of the protected person on the territory of the executing State and, where possible, the degree of risk for the protected person.


▐

Article 16


Consultations between competent authorities

Where appropriate, the competent authorities of the issuing State and of the executing State may consult each other in order to facilitate the smooth and efficient application of this Directive.

Article 17


Languages



1.
   The European protection order shall be translated 
by the competent authority of the issuing State
 into the official language or one of the official languages of the executing State.


2.
   
The form referred to in Article 12 shall be translated by the competent authority of the executing State into the official language or one of the official languages of the issuing State.




3.
   Any Member State may, either when this Directive is adopted or at a later date, state in a declaration deposited with the 
Commission
 that it will accept a translation in one or more other official languages of the Union.

Article 18


Costs

Costs resulting from the application of this Directive shall be borne by the executing State, 
in accordance with its national law,
 except for costs arising exclusively within the territory of the issuing State.

Article 19


Relationship with other agreements and arrangements

1.   Member States may continue to apply bilateral or multilateral agreements or arrangements which are in force upon the entry into force of this Directive, insofar as they allow the objectives of this Directive to be extended or enlarged and help to simplify or facilitate further the procedures for taking protection measures.
2.   Member States may conclude bilateral or multilateral agreements or arrangements after the entry into force of this Directive, insofar as they allow the objectives of this Directive to be extended or enlarged and help to simplify or facilitate the procedures for taking protection measures.
3.   By … (9) Member States shall notify the ▐ Commission of the existing agreements and arrangements referred to in paragraph 1 which they wish to continue applying. Member States shall also notify the ▐ Commission of any new agreements and arrangements as referred to in paragraph 2, within three months of signing such an agreement.

Article 20


Relationship with other instruments



1.
   
This Directive shall not affect the application of Regulation (EC) No 44/2001, nor of Regulation (EC) No 2201/2003, nor of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, nor of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.




2.
   
This Directive shall not affect the application of Council Framework Decision 2008/947/JHA and Council Framework Decision 2009/829/JHA.



Article 21


Implementation

1.   Member States shall 
bring into force the laws, regulations and administrative provisions
 to comply with ▐ this Directive by … (10). 
They shall forthwith inform the Commission thereof. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.


2.   Member States shall 
communicate
 to the Commission the text of the 
main
 provisions 
of
 national law 
which they adopt in
 the 
field covered by
 this Directive.

Article 22


Data collection



Member States shall, in order to facilitate the evaluation of the application of this Directive, communicate to the Commission relevant data related to the application of national procedures on the European protection order, at least on the number of European protection orders requested, issued and/or recognised.



Article 23


Review

By … (11), the Commission shall 
submit
 a report 
to the European Parliament and to
 the Council 
on
 the application of this Directive. The report shall be accompanied, if necessary, by legislative proposals.

Article 24


Entry into force

This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

Done at

For the European Parliament
The President


For the Council
The President




(1)  Position of the European Parliament of 14 December 2010.

(2)  OJ L 337, 16.12.2008, p. 102.

(3)  OJ L 294, 11.11.2009, p. 20.

(4)  

OJ L 12, 16.1.2001, p. 1.



(5)  

OJ L 338, 23.12.2003, p. 1.



(6)  

OJ L 151, 11.6.2008, p. 39.



(7)  

OJ L 350, 30.12.2008, p. 60.



(8)  

OJ L 348, 24.12.2008, p. 130.



(9)  Three months after the entry into force of this Directive.

(10)  
Three years
 after the entry into force of this Directive.

(11)  Four years after the entry into force of this Directive.

Tuesday 14 December 2010ANNEX I
EUROPEAN PROTECTION ORDER
referred to in Article 7 of

DIRECTIVE 2011/…/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF … ON THE EUROPEAN PROTECTION ORDER (*)



The information contained in this form is to be treated with appropriate confidentiality
















Tuesday 14 December 2010ANNEX II
FORM
referred to in Article 
12
 of

DIRECTIVE 2011/…/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF … ON THE EUROPEAN PROTECTION ORDER (*)

NOTIFICATION OF A BREACH OF THE PROTECTION MEASURE TAKEN ON THE BASIS OF THE EUROPEAN PROTECTION ORDER


The information contained in this form is to be treated with appropriate confidentiality